Christopher Parsons v. Auto Club Group , 565 F. App'x 446 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0353n.06
Case No. 13-2204
FILED
May 02, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Christopher Parsons, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
Auto Club Group, ) MICHIGAN
)
Defendant-Appellee. )
)
____________________________________/ )
BEFORE: MERRITT, COOK, and DONALD, Circuit Judges
MERRITT, Circuit Judge. Christopher Parsons appeals the district court’s grant of
summary judgment in favor of his former employer, Auto Club Group (“Auto Club”), on his
claim under the Americans with Disabilities Act (“ADA”). Because Parsons has failed to
produce sufficient evidence to establish his prima facie case, we AFFIRM.
I. BACKGROUND
We only summarize the facts of this case, which the district court described in detail.
Parsons v. Auto Club Group, No. 12-10907, 2013 WL 4546931, *1–2 (E.D. Mich. Aug. 28,
2013).
As a senior training specialist for Auto Club, Parsons conducted training sessions for
Auto Club life insurance agents in various locations. When late-evening training classes at one
Case No. 13-2204, Parsons v. Auto Club Group
location were followed by early-morning classes the next day, Auto Club agreed to pay for
Parsons to stay overnight at a hotel, rather than require him to commute home. It also paid for
Parsons’s mileage, car rental, and meal expenses when he traveled for work.
In March 2011, Parsons’s mileage and hotel expenses caught the eye of Auto Club’s
finance department, which began an investigation. An auditor compared Parsons’s expenses
with records of when he entered and left Auto Club offices, and concluded he had
inappropriately stayed overnight in hotels when his schedule did not require him to do so.
Another Auto Club investigator reviewed Parsons’s work hours, and mileage, meal, and car
rental expenses. The investigator concluded that Parsons had inappropriately used rental cars
and purchased meals for co-workers in violation of company policy. He also concluded that
Parsons had been paid for 30 days of work from January to July of that year without evidence of
work on those days. Finally, Auto Club hired a surveillance team to watch Parsons for one week
in July 2011. The surveillance found Parsons repeatedly shopping at a cigar store, conducting
personal errands, eating out with acquaintances, and napping in his car during work hours.
On August 2, 2011, Joseph Keller, the company investigator, and Parsons’s supervisor
Gary Dick interviewed Parsons about Auto Club policies and the investigation. Auto Club
suspended Parsons the following day and fired him on August 8, 2011, for violating its hotel,
meal, and rental car expense policies and for lying to internal investigators.
Parsons then filed suit against Auto Club, alleging it violated the Americans with
Disabilities Act by failing to accommodate his sleep apnea, which he alleges caused his work-
time napping. In February 2011, Parsons had informed Dick about his sleep apnea and that he
was having difficulties getting his insurer to pay for a medical device to help with the condition.
In his complaint, Parsons alleges Auto Club failed to provide “the reasonable accommodation of
-2-
Case No. 13-2204, Parsons v. Auto Club Group
being fitted with a medical device to correct the sleep apnea.” He alleges Auto Club could have
allowed him a leave of absence, use of accumulated vacation time, or short-term disability, rather
than terminating him. The district court granted summary judgment in favor of Auto Club,
concluding that Parsons had failed to request any accommodation from Auto Club.
II. STANDARD OF REVIEW
This court reviews de novo a district court’s grant of summary judgment. Parsons v. City
of Pontiac, 533 F.3d 492, 499 (6th Cir. 2008). Summary judgment is proper where “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). When determining whether the movant has
met this burden, this court views the evidence in the light most favorable to the nonmoving party.
Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007).
III. ANALYSIS
The district court properly concluded that Parsons failed to meet his burden under the
ADA. “To prove a claim of failure to provide a reasonable accommodation, [Parsons] has the
burden to show that (1) he is disabled within the meaning of the ADA and that (2) he is
‘otherwise qualified’ for the position he holds or desires despite his disability . . . ‘(a) without
accommodation from the employer; (b) with an alleged “essential” job requirement eliminated;
or (c) with a proposed reasonable accommodation.’” Cash v. Siegel-Robert, Inc., 548 F. App’x
330, 334 (6th Cir. 2013) (citing Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 452 (6th
Cir. 2004); Burns v. Coca–Cola Enter., 222 F.3d 247, 256 (6th Cir. 2000)). If Parsons makes a
prima facie case, the burden shifts to Auto Club to prove that a challenged job criterion is
essential, or that the proposed accommodation would impose an undue hardship on the company.
Hedrick, 355 F.3d at 452.
-3-
Case No. 13-2204, Parsons v. Auto Club Group
Parsons claim fails because he has not shown any evidence that he requested an
accommodation from Auto Club for his sleep apnea prior to filing his lawsuit. “A disabled
employee who claims that he or she is otherwise qualified with a reasonable accommodation
bears the initial burden of proposing an accommodation and showing that that accommodation is
objectively reasonable.” Id. at 457 (quotation marks and citation omitted). Interpretative
guidelines by the Equal Employment Opportunity Commission state that generally “it is the
responsibility of the individual with a disability to inform the employer that an accommodation is
needed.” 29 C.F.R. pt. 1630 App. § 1630.9 (interpreting 29 C.F.R. § 1630.9(a), making it
unlawful not to provide reasonable accommodations for known disabilities). Based on this
guideline, this Court has concluded that “[t]he employer is not required to speculate as to the
extent of the employee’s disability or the employee’s need or desire for an accommodation.”
Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046–47 (6th Cir. 1998); see also Cash,
548 F. App’x at 334–35 (finding that employee did not meet his burden to make a prima facie
case because he failed to request an accommodation).
Parsons argues that, when he spoke to Dick about his sleep apnea in February 2011, he
“was seeking the reasonable accommodation of time from his boss to accommodate his sleep
apnea until [he] could straighten out the Blue Cross mess.” However, he has not supported this
argument with any evidence. At deposition, Parsons testified that he told Dick only that his
apnea “was coming back again” and that he would have to pay $1,200 for the medical device he
needed because Blue Cross would not cover it. When asked specifically whether he told Dick
because he “expected [Dick] to do anything,” Parsons stated that these conversations with Dick
were only to “let [Dick] know” about the situation and that “there was nothing [Dick] could do
about it.” This is not enough to suggest that Parsons requested accommodation from Auto Club.
-4-
Case No. 13-2204, Parsons v. Auto Club Group
Similarly, Parsons has not shown that he requested any accommodation during his
August 2 interview with Dick and Keller, the investigator. During the interview, Parsons told
Keller that “I’ve gotten [sic] something wrong, I’ve got sleep apnea. I’m falling asleep all the
time.” He stated that he had fallen asleep at work and in his car driving home, and was “scared
to death of this.” These statements came in the context of his defending against the allegations
of misconduct and explaining why he was observed napping. Without more, Parsons has not
shown that this explanation was tied to a request for accommodation.
Even if the discussion with Keller were a request, it likely came too late to be considered
reasonable. “When an employee requests an accommodation for the first time only after it
becomes clear that an adverse employment action is imminent, such a request can be ‘too little,
too late.’” Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir. 2012); see also Davila v.
Qwest Corp., 113 F. App’x 849, 854 (10th Cir. 2004) (“[E]xcusing workplace misconduct to
provide a fresh start/second chance to an employee whose disability could be offered as an after-
the-fact excuse is not a required accommodation under the ADA.”). By the time Parsons sat
down with Keller—a day before Auto Club suspended Parsons and one week before it fired
him—it had already conducted a five-month investigation that revealed Parsons had, among
other things, violated its expenses policies, sought compensation for time when he did not work,
and lied to internal investigators.
Ultimately, Parsons has not shown sufficient evidence that he requested an
accommodation and has failed to make his prima facie case.
IV. CONCLUSION
For these reasons, the district court properly granted summary judgment to the Auto
Club. Accordingly, we AFFIRM.
-5-